Q-I just bought a small apartment building and there is one tenant who was friends with the previous owner and never paid rent. The previous owner allowed him to remain because of their friendship, but I don’t have the same allegiance. I need the income from that apartment to help pay the mortgage.
I’ve tried talking to that tenant but he refuses to pay any reasonable rent. He says that because the previous owner allowed him to stay, I have to follow suit. I want to serve a five-day notice to evict him. Can I do that?
A-First, I have to ask why you bought the building without first resolving this tenancy issue. If the income stream from that apartment was important, you should have made some provision to be able to rent it.
What may well have happened is that the previous owner of the building didn’t know how to terminate that tenancy, didn’t want to go to the expense, or didn’t want to affect his relationship with the tenant and so he left you with the problem.
Now you have the unwanted occupant and you can`t remove him under a five-day notice because it doesn’t apply. That notice can be used only if the tenant or occupant fails to pay the rent. With this notice, the tenant has five days in which to pay the rent and can do so unconditionally during that time. After that five days, the landlord can choose whether or not to accept the rent.
In your situation, you couldn’t prove to a judge what the rent would be. The rent isn’t simply determined by you, but rather by the agreement between landlord and tenant.
If this tenant wasn’t paying any rent to the previous landlord, he may be considered “a tenant at suffrance,” which means he can remain so long as the landlord allows him to, or as a month-to-month tenant, if he is paying other expenses associated with occupancy of the apartment.
In this situation, a judge might rule that the rent being paid by the occupant is the cost of utilities and any other common expenses or occupancy expenses he is paying. While that might not be a reasonable amount of rent, it might constitute rent for the apartment.
Probably your best solution now is to serve a 30-day notice of termination of tenancy. That notice would have to be served before the first day of the monthly term.
Before serving the notice, you probably should speak to the seller to get a little more information concerning the nature of that tenancy, and the starting and ending dates of the monthly terms. He also might tell you what expenses, if any, the tenants has been paying and the dates of payment. With this information, you can be as accurate as possible concerning the date of termination.
It is unlikely a judge will allow a tenant to remain in the apartment for free or that he will hold you to the previous owner’s agreement to allow his friend to remain without paying rent. However, in order to remove this occupant, you will need to go to court and follow the legal procedures.
Q-One of my tenants constantly allows friends into his apartment. The friends don’t make undue noise, but other tenants in the building get scared when they see unfamiliar people.
I want to pass a rule to prohibit tenants from allowing friends into their apartments and I understand that there’s a court case to back me up. How do I go about establishing such a rule?
A-The case you’re referring to involves a prohibition that already existed in the lease. For specific prohibitions to be enforceable against the tenants, they must be contained in the lease. You can’t simply decide at any time after the lease is signed to establish a regulation that restricts a tenant’s rights to use of the apartment.
If this tenant’s friends are causing disturbances, you might be able to hold the tenant responsible. However, if they aren’t causing any harm, there is little you can do.
It might be that your other tenants are overreacting to this tenant and his friends. If no one has been harmed and neither has the building, there appears to be no valid reason to restrict the rights of that tenant.
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Robert A. Boron, a Chicago attorney who specializes in leasing matters, writes about landlord and tenant issues for the Tribune. Questions to him can be addressed to Rental Q&A, Your Place section, Chicago Tribune, 435 N. Michigan Ave., Chicago, Ill. 60611.
